dissenting.
I agree that the district court abused its discretion when it admitted hearsay evidence identifying the “one kilogram sample” as cocaine. Because I cannot conclude with fair assurance that the district court’s error did-not substantially influence the jury’s verdict, however, I would reverse defendant’s conviction and remand for a new trial.
As the majority explains, in order to find the district court’s error harmless, we must be convinced “ “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.’” (Ante at 681) (quoting United States v. Manganellis, 864 F.2d 528, 539 (7th. Cir.1988).) Our inquiry “ ‘cannot be merely whether there was enough to support the result, apart from the phrase affected by the error. It is rather, even so, whether the error itself had substantial influence.’ ” United States v. Grier, 866 F.2d 908, 920 (7th Cir.1989) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946)). Thus, the majority properly requires that the untainted, incriminating evidence be “overwhelming” (ante at 681) and that it “unequivocally establish” defendant’s subjective criminal intent to sell narcotics, which is “an essential element” *686of the conspiracy charged here. (Id. at 682, 683.) 1 Unlike the majority, I do not find that the untainted evidence here unequivocally establishes Dominguez’ criminal intent.
The evidence definitively shows that Dominguez was engaged in a scheme to distribute a powdery substance to the government agents. However, it does not unequivocally establish defendant’s intent to distribute a controlled substance. The only direct evidence of defendant’s criminal intent in this respect was the improper hearsay. The majority meticulously details the circumstantial evidence of Dominguez’ participation in a conspiracy and finds that evidence overwhelming. (Id. at 683-84.) The evidence of a conspiratorial agreement is indeed overwhelming, but it is just as indicative of an agreement to conduct a sham transaction as it is of an agreement to consummate an authentic drug deal. In fact, the majority dismisses similar circumstantial evidence going to the identity of the distributed substance because it “could as easily support the existence of a sham drug sale as an authentic drug sale.” (Id. at 681-82.) The same is true of the circumstantial evidence of defendant’s intent. It could as easily suggest an intent to conduct a sham deal.
The evidence most probative of subjective criminal intent is the testimony of the confidential informant that eight months after the eme kilogram deal, Dominguez stated that he did not want to go through with the larger deal because he believed that Agent Melick was an undercover agent. Although this certainly suggests that the later multikilogram deal would have involved authentic cocaine, it does not confirm that the earlier deal did. It is equally plausible that the one kilogram deal was a sham designed to “test the waters” with Melick.2 Thus, the informant’s testimony does not “unequivocally establish” the requisite criminal intent.
Moreover, the hearsay testimony was crucial here because there was evidence suggesting that Melick himself had concerns about the authenticity of the substance. (See id. at 680.) Agent Melick testified that he became concerned when he learned that the substance was in several smaller packages as opposed to a single brick and when initial tests disclosed a non-cocaine powder on the packages. Indeed, the jury heard tape-recorded conversations in which Melick suggested that he was afraid of being “ripped off.” Melick also expressed his concern that Agent Turnbull, who received the packages in Guatemala City, was new and inexperienced with this sort of transaction. This evidence may have raised doubts in the jurors’ minds about the authenticity of the distributed substance, providing defendant an opportunity to argue that he had agreed only to scam the undercover agents.3 The *687hearsay testimony effectively erased any such doubts and foreclosed such an argument.
The majority affirms defendant’s conviction largely on the basis of its assumption that “[ijdentification of the transferred substance as an actual controlled substance was not required for conviction.” (Id. at 685; see also id. at 682.) But this assumes that Dominguez and his confederates intended to distribute cocaine. In other words, although it is true that the offense of conspiracy is complete upon entry into an illegal agreement, the agreement does not violate the statutes at issue here unless it involves the intent to distribute a controlled substance. If the conspirators agree only to conduct a sham deal, there is no illegal conspiracy. This case is not necessarily like those eases discussed by the majority (see id. at 682-83) in which a defendant intended to distribute a controlled substance that turned out to be something else. An illegal agreement exists there even if the substance is never identified. The same cannot be said, however, if the conspiratorial agreement is one to pass off some other powdery substance as cocaine. In that situation, the conspirators lack the requisite intent.
As the majority concedes, failure to prove the identity of the controlled substance in this instance “creates a significant problem,” for “[i]t casts doubt on an essential element of the crime, the defendant’s intent to sell narcotics.” (Id. at 681-82.) The majority also acknowledges that “[wjithout any objective basis to prove criminal intent, such as proof of the illegal substance, admission of the hearsay evidence might have had a substantial influence on the verdict, and thus would not be harmless error.” (Id. at 682.) I agree. Here, the circumstantial evidence of illegal intent might suggest a sham deal as readily as it does an authentic drug transaction, meaning that an essential element of the crime charged in the indictment has not been “unequivocally established.” In these circumstances, it is difficult to say that the hearsay testimony did not have a substantial influence on the jury’s verdict. Accordingly, I respectfully dissent from the court’s decision to affirm Dominguez’ conviction,
. As the majority points out, in conducting - this inquiry, we do not view the evidence in the light most favorable to the government, as we would in reviewing a challenge to the sufficiency of the evidence. (Id. at 683.)
. The majority disagrees with this postulation, finding it "implausible that a drug dealer (and therefore, a government agent pretending to be one) would risk negotiating for millions of dollars of cocaine .with the same suppliers who had previously stolen $12,000, substituting a fake substance for the agreed kilogram.” (Ante at 683-84, n. 1.) The implausibility of such a scenario would indeed be apparent if this were an actual series of transactions between a supplier and a true drug dealer, for such a dealer would be unlikely to conduct a subsequent transaction with a supplier who had "scammed” him eight months earlier. But the buyers here were not your average street dealers motivated solely by their own financial self-interest. Instead, they were government agents and a government informant who were interested in negotiating a tráns-action that would land the defendant and his confederates behind bars. It is therefore not implausible to suggest that the agents and the informant, even if burned by Dominguez eight months earlier, would press forward with plans for a subsequent deal. Moreover, Dominguez’ reluctance to consummate the larger deal is entirely consistent with this "scam” theory because it evidences his distrust for the buyers and their motives.- Thus, in my- view, Dominguez would not have been required to "persuade the jury that the agents and the informant were incredible” (id.), but only that they were attempting to do their jobs. Of course, I do not mean to suggest that the majority's view of the evidence is implausible, only that the evidence is susceptible to differing interpretations — i.e., it is not unequivocal.
.Admittedly, Dominguez’ primary defense at trial was mistaken identity rather than sham transaction. But that does not necessitate a finding of harmless error. After the improper identification evidence was admitted in the government’s *687case-in-chief, it would have been foolhardy for defendant to argue sham. Without the improper testimony, and given Melick’s concern about the authenticity of the substance, that defense would have been much more plausible.